NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-1252

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DUANE MILLER,

Appellant

v.

KEYSTONE BLIND ASSOCIATION/TPM

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2:11-cv-00887)

District Judge: Honorable Robert C. Mitchell

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 26, 2013

Before: SCIRICA, JORDAN and COWEN, Circuit Judges

(Opinion filed: June 28, 2013)

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OPINION

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PER CURIAM

Duane Miller, proceeding pro se, appeals from an order of the United States 

District Court for the Western District of Pennsylvania granting Appellee’s motion for 
2

summary judgment. For the reasons set forth below, we will affirm the District Court’s 

order. 

I.

Because we write primarily for the parties, we need only recite the facts necessary 

for our discussion. Miller brought this action against Keystone Blind Association/TPM 

(“KBA”), alleging racial discrimination in violation of Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § § 2000e-2000e-17 (“Title VII”). In January 2005, Miller started 

working as an Attendant for KBA at the Bridgeville Rest Areas on Interstate 79.

1

 Miller 

alleged that in October 2009, KBA discriminated against him when it promoted a white 

employee, with less seniority, into the position of Lead Attendant. Miller alleged that 

when the white employee left the position, KBA did not notify him even though it was 

aware of his interest in the position.

On March 12, 2010, Miller was promoted from Attendant to Lead Attendant at the 

Bridgeville Rest Areas on Interstate 79. Gary Holder became his supervisor and Holder 

reported to Operations Manager, Evelyn Kurdupski. During Miller’s employment as 

Lead Attendant, his supervisors received several complaints regarding his performance 

and attitude. Employees complained that Miller sat on picnic benches instead of 

working, and that he failed to properly submit paperwork. In August 2010, while 

 

1 When Miller started working at KBA, he received an Employee Manual, which 

included sexual harassment and safety policies. The manual stated that violation of the 

policies would result in disciplinary action, including possible termination.
3

Kurdupski was covering for Holder while he was on vacation, she personally witnessed 

Miller violate the lunch time rules and saw him sitting on benches, while directing others 

to perform work. Miller received disciplinary notices for his behavior. That same 

month, Kurdupski received two separate complaints from female employees of sexual 

harassment by Miller. Sharell Brown, a recently hired employee, reported that Miller 

made inappropriate and sexually charged comments regarding her undergarments and 

sexual relations. Brown did not feel comfortable working with Miller and refused to 

work with him. Carolyn Isenberg, a KBA employee since 2007, also refused to work 

with Miller due to his harassing behavior. She claimed that Miller told her explicit 

details of his self-described “sexcapades,” and asked her personal questions about her 

undergarments. The female employees provided written statements describing Miller’s 

harassment and participated in a conference call with the Vice President of Human 

Resources, during which they discussed their complaints. Kurdupski moved Brown and 

Isenberg to different rest areas as a result of the incidents.

When Holder returned from vacation, Krudupski spoke with him about Miller’s 

disciplinary notices and allegations of sexual harassment. Holder recommended that 

Miller be demoted to the position of Attendant and Krudupski agreed. The Vice 

President of Human Resources reviewed Miller’s file and on August 23, 2010, he 

demoted Miller from Lead Attendant to Attendant. The Human Resources Director 

wrote to Miller, notifying him of his demotion and attached a letter entitled, 
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“Investigation: Incident/Concern Request for Review.” Miller was told that if he 

disagreed with the demotion, he should complete the Request for Review form, but 

Miller never completed any paperwork. 

On August 26, 2010, Miller filed an EEOC charge, claiming that KBA 

discriminated against him by demoting him from Lead Attendant to Attendant in 

violation of Title VII. The EEOC investigation did not find any statutory violations. In 

July 2011, Miller filed a complaint, which he amended in August 2011. KBA filed a 

motion for summary judgment, which the District Court granted on January 8, 2013.2 

Miller then timely filed this appeal.3 

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review 

over the District Court’s order granting summary judgment. See Giles v. Kearney, 571 

F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate only when the “movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the burden 

of demonstrating that there is no genuine issue as to any material fact, and summary 

 

2 Miller filed his own motion for summary judgment on September 13, 2012. The 

District Court dismissed it as untimely, but agreed to consider it in conjunction with 

Miller’s response to KBA’s motion for summary judgment. 

3

In his appellate brief, Miller raises for the first time the contention that the District 

Court should have applied the Americans with Disabilities Act. Therefore, we will not 

consider this argument.
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judgment is to be entered if the evidence is such that a reasonable fact finder could find 

only for the moving party.” Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 

2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We may 

summarily affirm if the appeal does not present a substantial question, and may do so on 

any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) 

(per curiam).

III.

In his complaint, Miller alleges discrimination based upon race. Upon review of 

the record, we conclude that the District Court correctly granted KBA’s motion for 

summary judgment.

Miller’s claim of race discrimination arising out of his demotion fails under the 

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973). Under this framework, he has the initial burden of establishing a prima facie case 

of discrimination by proving that (1) he is a member of a protected class; (2) he suffered 

some form of adverse employment action; and (3) this action occurred under 

circumstances giving rise to an inference of unlawful discrimination that might occur 

when nonmembers of the protected class are treated differently. See Goosby v. Johnson 

& Johnson Med., 228 F.3d 313, 318 (3d Cir. 2000); Jones v. Sch. Dist. of Phila., 198 

F.3d 403, 410 (3d Cir. 1999). Once a plaintiff establishes a prima facie case, the 

employer must provide a legitimate, non-discriminatory reason for the adverse 
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employment action. See Goosby, 228 F.3d at 319. If the employer meets this burden, the 

burden again shifts to the plaintiff to demonstrate that the employer’s reason is pretextual. 

See Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005); Jones, 198 F.3d at 412.

We accept for the sake of argument that Miller established a prima facie case of 

discrimination. Shifting the burden to KBA, it has pointed to legitimate, nondiscriminatory reasons for Miller’s demotion, including his failure to properly submit 

paperwork, his sitting on picnic tables rather than working, and the incidents in which he 

sexually harassed female employees. In order for Miller’s discrimination claim to 

succeed, he must show that KBA’s proffered legitimate reasons to demote him were a 

pretext for unlawful racial discrimination. Miller argued that KBA did not follow the 

proper procedures in demoting him. However, the record shows that KBA acted in 

accordance with its employment practices as set forth in the handbook Miller received 

when he started working there. Miller also alleged that for example he was treated 

differently from other similarly situated white employees, but there is evidence that KBA 

demoted a white Lead Attendant to Attendant for his failure to complete proper

paperwork. Thus, Miller has failed to produce any evidence that would lead to the 

inference that KBA’s proffered reasons for demoting Miller were mere pretext. See

Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). Accordingly, we conclude that the 
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District Court properly granted KBA’s motion for summary judgment with respect to 

Miller’s race discrimination claim arising from his demotion.

Regarding Miller’s claim of racial discrimination based on KBA’s failure to 

promote him in October 2009, we agree with the District Court that this claim fails 

because Miller did not exhaust his administrative remedies. A plaintiff initiating an 

employment discrimination suit under Title VII must first exhaust his remedies by 

complying with the procedural requirements set forth in 42 U.S.C. § 2000e-5. These 

requirements include filing a charge with the EEOC within 180 days of the alleged 

unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1); Burgh v. Borough 

Council of Borough of Montrose, 251 F.3d 465, 472 (3d Cir. 2001). Here, Miller failed 

to exhaust his claim of racial discrimination arising out of KBA’s failure to promote him 

in October 2009. Because this claim was not brought to the attention of the EEOC, and 

accordingly did not fall within the scope of its investigation, the District Court properly 

dismissed Miller’s failure to promote claim as unexhausted. See, e.g., Webb v. City of 

Phila., 562 F.3d 256, 262-63 (3d Cir. 2009).

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.